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SB-664 Electronic toll and transit fare collection systems.(2019-2020)

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Date Published: 08/13/2019 09:00 PM
SB664:v97#DOCUMENT

Amended  IN  Assembly  August 13, 2019
Amended  IN  Assembly  June 10, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 664


Introduced by Senator Allen

February 22, 2019


An act to amend Sections 27565 and 31490 of the Streets and Highways Code, and to amend Sections 23302.5 and 40254 of the Vehicle Code, relating to transportation.


LEGISLATIVE COUNSEL'S DIGEST


SB 664, as amended, Allen. Electronic toll and transit fare collection systems.
(1) Existing law requires the Department of Transportation, in cooperation with the Golden Gate Bridge, Highway and Transportation District and all known entities planning to implement a toll facility, to develop and adopt functional specifications and standards for an automatic vehicle identification system, as specified, in compliance with specified objectives, including that a vehicle owner shall not be required to purchase or install more than one device to use on all toll facilities, and generally requires any automatic vehicle identification system purchased or installed after January 1, 1991, to comply with those specifications and standards.
This bill would authorize a toll facility to require a vehicle owner or user of a toll facility to purchase, use, or install a second device to take advantage of a toll discount. The bill would require that changes made to these provisions on or after January 1, 2019, apply retroactively to January 1, 2011. expand the above-described objective so that a user of a toll facility shall also not be required to purchase or install more than one device to use on all toll facilities.
(2) Existing law prohibits a transportation agency from selling or providing to any other person or entity personally identifiable information, as defined, of a person who subscribes to an electronic toll or electronic transit fare collection system or who uses a toll facility that employs an electronic toll collection system, except as specified. Existing law, with certain exceptions, requires a transportation agency to discard personally identifiable information within 4½ years, as specified.
Under existing law, the requirement that the transportation agency discard personally identifiable information, as described above, does not prohibit a transportation agency or its designee from performing financial and accounting functions such as billing, account settlement, enforcement, or other financial activities required to operate and manage the electronic toll collection system or electronic transit fare collection system.
This bill would instead provide that a transportation agency is not prohibited from using or providing personally identifiable information to any other person or entity for the sole purpose purposes of operating and managing an electronic toll collection or electronic transit fare collection system including, among other things, system, or performing collection, account maintenance, account settlement, and enforcement activities.

The

This bill would prohibit, on or after January 1, 2020, a transportation agency from using or providing personally identifiable information for purposes of issuing public safety and travel alerts, or customer surveys, unless the transportation agency has received affirmative express written consent to do so.
Existing law defines “transportation agency” for these purposes as the Department of Transportation, the Bay Area Toll Authority, any entity operating a toll bridge, toll lane, or toll highway within the state, any entity administering an electronic transit fare collection system and any transit operator participating in that system, or any entity under contract with those entities.
This bill would expand the definition of “transportation agency” to also include any entity under contract at any level, including subcontractors, with those entities for purposes of billing, account settlement, enforcement, communications, or other activities related to the operation or management of an electronic toll collection system or electronic fare collection system.

The

This bill would make a contractor or subcontractor that uses accesses, collects, uses, or retains personally identifiable information for a purpose other than as identified by the toll or transit authority solely liable for damages for that misuse. collection, account maintenance, account settlement, communications, or enforcement activities, liable, as specified.

Existing law authorizes a person whose personally identifiable information has been knowingly sold or otherwise provided in violation of these provisions to bring an action to recover actual damages, $2,500 per violation, or $4,000 per violation if the information has been knowingly sold or otherwise provided 3 or more times, whichever is greater, reasonable costs, and attorney’s fees.

The bill would limit the damages a person could recover, as described above, to actual damages, not more than $2,500 per violation, or not more than $4,000 per violation if the information has been knowingly sold or otherwise provided 3 or more times, whichever is less, reasonable costs, and attorney’s fees.

The bill would provide, in the case of a repeat toll violator from whom the transportation agency has attempted to recover tolls or penalties, that a damage payment to the repeat toll violator shall not exceed $4,000, regardless of the number of violations.

This bill would require that changes made to the provisions described in this paragraph (2) on or after January 1, 2019, apply retroactively to January 1, 2011, for transportation agencies that employ electronic toll collection systems, and retroactively to January 1, 2014, for transportation agencies that employ electronic transit fare collection systems. assert that certain of the above-described bill provisions are declarative of existing law.
(3)  Existing law prohibits a person from evading or attempting to evade the payment of tolls or other charges on any vehicular crossing or toll highway and subjects a violator to civil penalties governed by a civil administrative procedure that includes an administrative investigation and review procedure, and an administrative and judicial appeal process.
This bill would deem a person to be evading or attempting to evade the payment of tolls or other charges on any vehicular crossing or toll highway, as specified. The bill would also provide that a notice of toll evasion issued, as specified, would subject the registered owner to civil penalties.
This bill would require that changes made to these provisions on or after January 1, 2019, by this bill apply retroactively to January 1, 2011.
(4) Existing law requires that a notice of a toll evasion violation set forth specified information, including, among other things, if applicable, if a vehicle is found, by automated devices, to have evaded the toll through failure to meet occupancy requirements in a high-occupancy toll lane, a copy of photographic evidence on which the determination was based.
Existing law requires the processing agency to prepare and forward a notice of toll evasion violation to the registered owner of the vehicle cited for the violation, as specified. Existing law requires the processing agency to use its best efforts to obtain accurate information concerning the identity and address of the registered owner for the purpose of forwarding a notice of toll evasion violation.
This bill would delete the requirement that the toll evasion, if applicable, failed to meet occupancy requirements in a high-occupancy toll lane and would authorize the notice of a toll evasion violation for failure to meet occupancy requirements to include other evidence on which the notice of the toll evasion determination was based. lane. The bill would also provide that that, on and after January 1, 2021, forwarding the notice to the an address provided by a state department of motor vehicles or any agency that functions in that role, constitutes prima facie evidence of adequate delivery of notice for all purposes. certain governmental entities, or taking an additional step to identify a potential alternative address for purposes of sending the notice and forwarding of the notice to that address, constitutes evidence of adequate delivery of notice. The bill would prohibit the pursuit of a penalty for any toll evasion violation unless the notice of the violation has been forwarded as described.
This bill would authorize the processing agency to use any reliable source to obtain the registered owner’s information and would provide that using the an address provided by a state department of motor vehicles or any agency that functions in that role, as described above constitutes prima facie evidence of best efforts.

(5)This bill would provide that its provisions are declaratory of existing law.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

It is the intent of the Legislature to reaffirm that the enactment of Sections 27565 and 31490 of the Streets and Highways Code and the amendments to those statutes is for purposes of protecting the privacy of motorists and subscribers to electronic toll collection systems and electronic transit fare collection systems by controlling the use of personal information that is collected and stored by electronic toll collection systems and electronic transit fare collection systems and that the protections are not intended to prohibit a transportation agency from performing activities related to the operation and management of electronic toll or transit fare collection systems, including collection and enforcement activities, or transmitting information for purposes of interoperability of toll collection across toll agencies.

SEC. 2.SECTION 1.

 Section 27565 of the Streets and Highways Code is amended to read:

27565.
 (a) The department, in cooperation with the district and all known entities planning to implement a toll facility in this state, shall develop and adopt functional specifications and standards for an automatic vehicle identification system, in compliance with all of the following objectives:
(1) In order to be detected, the driver shall not be required to reduce speed below the applicable speed for the type of facility being used.
(2) A vehicle owner or user of a toll facility shall not be required to purchase or install more than one device to use on all toll facilities, but may be required to have a separate account or financial arrangement for the use of these facilities. Notwithstanding the foregoing sentence, a vehicle owner or user of a toll facility may be required to purchase, use, or install a second device to take advantage of a toll discount.
(3) The facility operators shall have the ability to select from different manufacturers and vendors. The specifications and standards shall encourage multiple bidders, and shall not have the effect of limiting the facility operators to choosing a system that is able to be supplied by only one manufacturer or vendor.
(b) Except as provided in subdivision (c), an automatic vehicle identification system purchased or installed after January 1, 1991, shall comply with the specifications and standards adopted pursuant to subdivision (a).
(c) Subdivision (b) does not apply to an interim automatic vehicle identification system for which a contract is entered into between an entity planning to implement a toll facility and the supplier of the interim system before January 1, 1994, if both of the following requirements are met:
(1) The department has made a written determination that the installation and operation of the interim system will expedite the completion of the toll facility and its opening to public use.
(2) The entity planning to implement the toll facility has entered into an agreement with the department to install, within five years after any portion of the toll facility is opened for public use, an automatic vehicle identification system meeting the specifications and standards adopted pursuant to subdivision (a).
(d) The automated vehicle identification system developed by the department pursuant to subdivision (a) shall be capable of identifying various types of vehicles, including, but not limited to, commercial vehicles.
(e) On and after the date specified in the federal Moving Ahead for Progress in the 21st Century Act for implementation of interoperability of electronic toll collection on federal-aid highways, operators of toll facilities on federal-aid highways may fully implement technologies or business practices that provide for the interoperability of electronic toll collection programs consistent with federal law. Operators of toll facilities on federal-aid highways engaged in an interoperability program may provide only the following information regarding a vehicle’s use of the toll facility, and shall otherwise comply with all federal and state privacy protection laws, including, but not limited to, Section 31490:
(1) License plate number.
(2) Transponder identification number.
(3) Date and time of transaction.
(4) Identity of the agency operating the toll facility.

(f)Amendments made to this section on or after January 1, 2019, shall apply retroactively to January 1, 2011.

SEC. 3.SEC. 2.

 Section 31490 of the Streets and Highways Code is amended to read:

31490.
 (a) Except as otherwise provided in this section, a transportation agency may not sell or otherwise provide to any other individual or entity personally identifiable information of any person who subscribes to an electronic toll or electronic transit fare collection system or who uses a toll bridge, toll lane, or toll highway that employs an electronic toll collection system.
(b) A transportation agency that employs an electronic toll collection or an electronic transit fare collection system shall establish a privacy policy regarding the collection and use of personally identifiable information and provide to subscribers of that system a hard copy of the privacy policy or internet link to the privacy policy in a manner that is conspicuous and meaningful, such as by providing a link to the policy on the home page of the agency’s internet website to the subscriber with the transponder, electronic transit pass, or other device used as an electronic toll or electronic transit fare collection mechanism, in an email acknowledging that the subscription process was successfully completed, or, if the system does not use such mechanisms, with the application materials. A transportation agency shall conspicuously post its privacy policy on its internet website. For purposes of this subdivision, “conspicuously post” has the same meaning as that term is defined in paragraphs (1) to (4), inclusive, of subdivision (b) of Section 22577 of the Business and Professions Code. The privacy policy shall include, but need not be limited to, a description of the following:
(1) The types of personally identifiable information that is collected by the agency.
(2) The categories of individuals or entities with whom the agency may share personally identifiable information.
(3) The process by which the transportation agency notifies subscribers of material changes to its privacy policy.
(4) The effective date of the privacy policy.
(5) The process by which a subscriber may review and request changes to any of the subscriber’s personally identifiable information.
(c) A transportation agency may, within practical business and cost constraints, store only personally identifiable information of a person such as, to the extent applicable, the account name, credit card number, billing address, vehicle information, and other basic account or transaction violation information required to perform functions such as billing, account settlement, or enforcement activities. All other information shall be discarded no more than four years and six months after the billing cycle has concluded, the bill has been paid, and all toll or fare violations, if applicable, have been resolved.
(d) A transportation agency shall make every effort, within practical business and cost constraints, to purge the personal account information of an account that is closed or terminated. In no case shall a transportation agency maintain personal information more than four years and six months after the date an account is closed or terminated.
(e) (1) A transportation agency may make personally identifiable information of a person available to a law enforcement agency only pursuant to a search warrant. Absent a provision in the search warrant to the contrary, the law enforcement agency shall immediately, but in any event within no more than five days, notify the person that their records have been obtained and shall provide the person with a copy of the search warrant and the identity of the law enforcement agency or peace officer to whom the records were provided.
(2) This section does not prohibit a transportation agency from making personally identifiable information of a person available to a peace officer, as defined in Section 830.1 or 830.2 of the Penal Code, when that peace officer is conducting a criminal or traffic collision investigation, if the officer has good cause to believe that a delay in obtaining this information by seeking a search warrant would cause an adverse result, as defined in subparagraphs (A) to (E), inclusive, of paragraph (2) of subdivision (a) of Section 1524.2 of the Penal Code.
(f) This section does not prohibit a transportation agency from providing aggregated traveler information derived from collective data that relates to a group or category of persons from which personally identifiable information has been removed.
(g) This section does not prohibit a transportation agency, with respect to an electronic toll collection system, from providing the license plate number of an intermodal chassis to the owner of the chassis for purposes of locating the driver of the chassis in the event the driver fails to pay a toll.
(h) This section, with respect to an electronic toll collection system, does not prohibit a transportation agency from sharing data with another transportation agency solely to comply with interoperability specifications and standards adopted pursuant to Section 27565 regarding electronic toll collection devices and technologies. A third-party vendor may not use personally identifiable information obtained under this subdivision for a purpose other than described in this subdivision.
(i) This section shall not prohibit a transportation agency from using or providing personally identifiable information for the sole purpose purposes of operating and managing an electronic toll collection or electronic transit fare collection system, including, but not limited to, system, or performing collection, account maintenance, account settlement, and enforcement activities. On or after January 1, 2020, a transportation agency shall not use or provide personally identifiable information for purposes of issuing public safety and travel alerts, or customer surveys, unless the transportation agency has received affirmative express written consent to do so.
(j) In addition to uses of personally identifiable information authorized in subdivision (i), a transportation agency may directly or indirectly communicate to subscribers of an electronic toll collection system or an electronic transit fare collection system about products and services offered by, the agency, a business partner, or the entity with which it contracts for the system, using personally identifiable information limited to the subscriber’s name, address, telephone number, and electronic mail address, provided that, for personally identifiable information acquired on or after January 1, 2011, the transportation agency has received the subscriber’s express written or affirmative electronic consent to receive the communications. communications in a manner that is separate from the transportation agency’s privacy policy or terms and conditions. The consent required by this subdivision may be revoked at any time through procedures established by the transportation agency.
(k) A transportation agency may not use a nonsubscriber’s personally identifiable information obtained using an electronic toll collection or electronic transit fare collection system to market products or services to that nonsubscriber. This subdivision shall not apply to toll-related products or services contained in a notice of toll evasion.
(l) For purposes of this section, “transportation agency” means the Department of Transportation, the Bay Area Toll Authority, any entity operating a toll bridge, toll lane, or toll highway within the state, any entity administering an electronic transit fare collection system and any transit operator participating in that system, or any entity under contract at any level, including subcontractors, with any of the above entities for purposes of billing, account settlement, enforcement, communications, or other activities related to the operation or management of an electronic toll collection system or electronic transit fare collection system. A transportation agency and any entity under contract or subcontract for a purpose described above shall be deemed a single “transportation agency” for purposes of this section. A contractor or subcontractor shall not use access, collect, use, or retain personally identifiable information obtained under this section for a purpose other than as identified by the toll or transit authority. collection, account maintenance, account settlement, communications, or enforcement activities, and is subject to the data retention limits described in subdivision (c). If a contractor or subcontractor uses accesses, collects, uses, or retains personally identifiable information for a purpose other than as identified by the toll or transit authority, those enumerated above, the contractor or subcontractor shall be solely liable under subdivision (r). (q).
(m) For purposes of this section, “electronic toll collection system” is a system where a transponder, camera-based vehicle identification system, or other electronic medium is used to deduct payment of a toll from a subscriber’s account or to establish an obligation to pay a toll, including the proper toll amount, and “electronic transit fare collection system” means a system for issuing an electronic transit pass that enables a transit passenger subscriber to use the transit systems of one or more participating transit operators without having to pay individual fares, where fares are instead deducted from the subscriber’s account as loaded onto the electronic transit pass.
(n) For purposes of this section, “person” means any person who subscribes to an electronic toll collection or electronic transit fare collection system or any person who uses a toll bridge, toll lane, or toll road that employs an electronic toll collection system.
(o) For purposes of this section, “personally identifiable information” means any information that identifies or describes a person including, but not limited to, travel pattern data, address, telephone number, email address, license plate number, photograph, bank account information, or credit card number. For purposes of this section, with respect to electronic transit fare collection systems, “personally identifiable information” does not include photographic or video footage.
(p) For purposes of this section, “interoperability” means the sharing of data, including personally identifiable information, across multiple transportation agencies for the sole purpose of creating and operating an integrated transit fare payment system, integrated toll payment system, or both.

(q)Consistent with subdivision (a), for purposes of this section, “otherwise provide” includes only intentional transmissions by a transportation agency of personally identifiable information to a third party. It does not encompass transmissions made in accordance with subdivisions (c), (d), (e), (g), (h), (i), (j), or (k).

(r)

(q) (1) In addition to any other remedies provided by law, a person whose personally identifiable information has been knowingly sold or otherwise provided in violation of subdivision (a) this section may bring an action to recover either actual damages or not more than two thousand five hundred dollars ($2,500) for each individual violation, whichever is less, greater, and may also recover reasonable costs and attorney’s fees.
(2) A person whose personally identifiable information has been knowingly sold or otherwise provided three or more times in violation of subdivision (a) this section may bring an action to recover either actual damages or not more than four thousand dollars ($4,000) for each individual violation, whichever is less, greater, and may also recover reasonable costs and attorney’s fees.

(3)Notwithstanding paragraphs (1) and (2), in the case of a repeat toll violator from whom a transportation agency has attempted to recover tolls or penalties, a damage payment to the repeat toll violator shall not exceed four thousand dollars ($4,000), regardless of the number of violations of subdivision (a).

(s)

(r) Nothing in this section shall preclude compliance with a court order or settlement agreement that has been approved on or before April 25, 2010.

(t)

(s) A transportation agency that employs an electronic toll collection or electronic transit fare collection system may impose an administrative fee on persons who use those systems in an amount sufficient to cover the cost of implementing this section.

(u)Amendments made to this section on or after January 1, 2019, shall apply retroactively to January 1, 2011, for transportation agencies that employ electronic toll collection systems and shall apply retroactively to January 1, 2014, for transportation agencies that employ electronic transit fare collection systems.

(t) Amendments made to subdivision (b) and the second sentence of subdivision (i) by Senate Bill 664 of the 2019–20 Regular Session are prospective only. All other amendments made to this section by Senate Bill 664 of the 2019–20 Regular Session are declarative of existing law.

SEC. 4.SEC. 3.

 Section 23302.5 of the Vehicle Code is amended to read:

23302.5.
 (a) A person shall not evade or attempt to evade the payment of tolls or other charges on any vehicular crossing or toll highway. A person shall be deemed to be evading or attempting to evade the payment of tolls or other charges on any vehicular crossing or toll highway if there is prima facie evidence of the person’s failure to pay tolls, including failure to pay the applicable toll rate, or other charges on any vehicular crossing or toll highway, as set forth in Section 23302, or as may otherwise be set forth in the enforcing agency’s toll policies, ordinance, or resolution.
(b) A violation of subdivision (a) is subject to civil penalties and is neither an infraction nor a public offense, as defined in Section 15 of the Penal Code. The enforcement of those civil penalties shall be governed by the civil administrative procedures set forth in Article 4 (commencing with Section 40250) of Chapter 1 of Division 17. A notice of toll evasion issued in accordance with Section 40254 and pursuant to this section or section, Section 23302 and in accordance with Section 40254 23302, or Section 40250 shall subject the registered owner to civil penalties.
(c) Amendments made to this section on or after January 1, 2019, by Senate Bill 664 of the 2019–20 Regular Session shall apply retroactively to January 1, 2011.

SEC. 5.SEC. 4.

 Section 40254 of the Vehicle Code is amended to read:

40254.
 (a) If a vehicle is found, by automated devices, visual observation, or otherwise, to have evaded tolls on a toll road or toll bridge, and subdivision (d) of Section 40250 does not apply, an issuing agency or a processing agency, as the case may be, shall, within 21 days of the violation, forward to the registered owner a notice of toll evasion violation setting forth the violation, including reference to the section violated, the approximate time of the violation, and the location where the violation occurred. If accurate information concerning the identity and address of the registered owner is not available to the processing agency within 21 days of the violation, the processing agency shall have an additional 45 calendar days to obtain such information and forward the notice of toll evasion violation. If the registered owner is a repeat violator, the processing agency shall forward the notice of toll evasion violation within 90 calendar days of the violation. “Repeat violator” means any registered owner for whom more than five violations have been issued pursuant to this section in any calendar month within the preceding 12-month period. The notice of toll evasion violation shall also set forth, if applicable, all of the following:
(1) The vehicle license plate number.
(2) If practicable, the registration expiration date and the make of the vehicle.
(3) If a vehicle is found, by automated devices, to have evaded the toll through failure to meet occupancy requirements, a copy of photographic or other evidence on which the determination was based.
(4) A clear and concise explanation of the procedures for contesting the violation and appealing an adverse decision pursuant to Sections 40255 and 40256.
(b) (1) After the authorized person has notified the processing agency of a toll evasion violation, the processing agency shall prepare and forward the notice of violation to the registered owner of the vehicle cited for the violation. Forwarding the notice
(2) On and after January 1, 2021, either of the following events shall constitute evidence of adequate delivery of notice:
(A) The notice of toll evasion is forwarded to the address provided by a state department of motor vehicles or any agency that functions in that role, shall constitute prima facie evidence of adequate delivery of notice for all purposes. Any as described in subparagraph (B) of paragraph (2) of subdivision (e) of Section 40250, or to an address provided by the National Change of Address System maintained by the United States Postal Service, and the notice is not returned as nondeliverable.
(B) If a notice of toll evasion sent pursuant to subparagraph (A) is returned as nondeliverable without a forwarding address and an issuing agency or processing agency intends to pursue a toll evasion penalty, an additional step is taken to identify a potential alternative address for purposes of sending the notice and the notice is forwarded to that address. If the additional step is taken, which may include a commercially available skiptracing service, and the notice is forwarded pursuant to this subparagraph, the time period for the registered owner shall be reset based on the date of that forwarding.
(3) A penalty for a toll evasion violation shall not be pursued unless the notice of the violation has been forwarded as set forth in this section.
(4) Any person, including the authorized person and any member of the person’s department or agency, or any peace officer who, with intent to prejudice, damage, or defraud, is found guilty of altering, concealing, modifying, nullifying, or destroying, or causing to be altered, concealed, modified, nullified, or destroyed, the face of the original or any copy of a notice that was retained by the authorized person before it is filed with the processing agency or with a person authorized to receive the deposit of the toll evasion violation is guilty of a misdemeanor.
(c) If, after a copy of the notice of toll evasion violation has been sent to the registered owner, the issuing person determines that, due to a failure of proof of apparent violation, the notice of toll evasion violation should be dismissed, the issuing agency may recommend, in writing, that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the processing agency.
(d) If the processing agency makes a finding that there are grounds for dismissal, the notice of toll evasion violation shall be canceled pursuant to Section 40255.
(e) Under no circumstances shall a personal relationship with any law enforcement officer, public official, law enforcement agency, processing agency agency, or toll operating agency or entity be grounds for dismissal of the violation.
(f) The processing agency shall use its best efforts to obtain accurate information concerning the identity and address of the registered owner for the purpose of forwarding a notice of toll evasion violation pursuant to subdivision (a) and may use any reliable source to obtain the information. Notwithstanding the foregoing sentence, using the address provided by a state department of motor vehicles or any agency that functions in that role, complying with subdivision (b) shall constitute prima facie evidence of best efforts.

SEC. 6.

The amendments of Sections 27565 and 31490 of the Streets and Highways Code and Sections 23302.5 and 40254 of the Vehicle Code made by this act do not constitute a change in, but are declaratory of, existing law.